Still on CJN Suspension And The Constitutional Roles, By Ademola Orunbon

When former President Olusegun Obasanjo months ago flared-up and took a swipe at President Muhammadu Buhari, accusing him and ” his hatchet men” of running an autocratic government similar to the administration of the late military dictator, General Sani Abacha. Then, most of Buharideens and Buharists started pointing accusing fingers to Baba Obasanjo, reproachful Obasanjo of being biased in his submission and unnecessarily attacking PMB for nonentity and intolerance sake. Though, Obasanjo in his 16-page statement titled “point for concern and action,” given to journalists for publication. OBJ noted that Nigerians now witnessing imprisonment of the opposition and a vicious self-succession plan by Abacha between 1993 and 1998.

Former President Obasanjo also said that it was clear from all indications that Buhari is putting into practice the lessons he learned from Abacha. He said Buhari has intimidated and harassed the private sector, attacked the National Assembly and now unconstitutionally and recklessly attacked and intimidated the judiciary to cow them to submission. Obasanjo said that the accusation of corruption charges against the ousted Chief Justice of Nigeria, Walter Onnoghen was for President and his hatchet men in the incoming elections thinking that the judiciary must be primed in their favour.

With the OBJ’s submissions, it is crystal clear that the ousted CJN, Justice Walter Samuel Nkanu Onnoghen has been harassed from office and prosecuted for non-declaration of his assets without following the constitution and the law, just to make him to conform or set him aside for a Buhari man to take over or act in that capacity for the post election elections litigations, as President Buhari and his people believe no stone should be left unturned to rig elections in favour of Buhari and All Progressives Congress (APC). If not for the fact that the President having hidden agenda against Onnoghen in removing him from office, how would a tribunal court ordered President Buhari to remove CJN and he followed such a judgment and order in jiffy.

Even the immediate past CJN, Mahmud Mohammed, once warned that Presidents or Chairmen of tribunals, such as the Tax Appeal Tribunal and Code of Conduct Tribunal, should not be addressed as Justice. Who could tell at the time that a sitting President would sometime in the future base his illegal dethronement of a Chief Justice of Nigeria on the orders of someone who is not a Justice properly so-called? How on earth could President Muhammadu Buhari danced to the order of the President/Chairman of a Tribunal? Despite the fact that the former CJN has warned that their judgments or orders should not be followed because they were not Judge nor Justice of any recognized court of law which gives order to abide with.

No visionary President would take the fateful steps of subverting constitutionalism, scarifying both the CCT Chairman and the acting CJN for life, and opening the country up to all sorts of desperate political and judiciary scheming. It can only be because his government is used to trying cases on media platform, social media, electronic and print. All because he receives populists hearing and backing, he has sustained the atrocious practice. He is unlikely to stop, the country campaigns to give him another four years, despite showing his hands quite early. No people can be so remorseless and so fatalistic.

No less than some months or thereabout after ex-President Olusegun Obasanjo characterized the Muhammadu Buhari presidency as a reincarnation of the Sani Abacha dictatorship, the president summarily suspended from office the Chief Justice of Nigeria (CJN), Walter Onnoghen. Though, the President claimed to be acting on the order of the Code of Conduct Tribunal (CCT) which on January 23, 2019 asked him to swear in a replacement for CJN. But, in his address while swearing in the replacement. Ibrahim Tanko Muhammad, a Justice of the Supreme Court, the President chivalrously bemoaned seeing “the full weight of the Chief Justice Of Nigeria descend on the tender head of one of the organs of Justice under his control.” It is clear he spoke of the CCT. He then adds; “There is simply no way the officers of that court from the Chairman to the bailiffs, can pretend to be unaffected by the influence of the leader of the judiciary.”

Narrating to snappish mode, in consonance with the nature and ethnicity of his government, the President lamented that “practically every other day since his (CJN) trial commenced, the nation has witnessed various courts granting orders and counter-orders in favour of the Chief Justice Of Nigeria, all of them characterized by an unholy alacrity between the time of filing, hearing and delivery of judgment in same.” Blindfolded by noxious rage against lawyers whom he accused of insisting “that (court) orders, whether right or wrong are technically valid, and must be obeyed till an appellate court says otherwise,” the President betrayed his suspicion of the judiciary, it not revulsion for their methods. “No doubt, that is the proper interpretation,” he grudgingly acknowledged with his unfailing inquisitorial tone, “but is it the right disposition for our dear nation?”

President Buhari anchors his suspension (which in Nigeria is tantamount to removal) of the CJN on the order of the CCT and his reading of the judiciary process, or as he sums it, judiciary travesty. He says, for instance, that he deplores the ease with which the CJN; lawyers and the courts were achieving their aims with “unholy alacrity between the time of filing, hearing and delivery of judgment.” The President is today descended as forgetful and distracted, but even he exceeds himself when he spoke of unholy alacrity between the courts, and insinuates a judiciary conspiracy in favour of the CJN. Alacrity? It took more than two weeks for the CJ N to get the courts to grant him a weak and tentative reprieve, from the time a former media aide of the President, Dennis Aghanya, filed a petition against him at the Code of Conduct Bureau (CCB) on January 9, 2019, to the stay of proceedings ordered by the Appeal Court on January 24, 2019.

In disparity, it took only four working days-January 9 to 14-to deliver Mr. Aghanya’s petition to the CCB and arraign the CJN before the CCT. Though, the petition was dated January 7, the CCB received it January 9, investigated it posthaste before or by January 10, and filled a six-count charges against the CJN on January 11. It was obscenely hasty, for more provocative and deplorable than the alacrity the President alluded to in his address. And hurried, malevolent actions, too many loopholes were created by the government action. The President claimed to have acted upon the CCT ex parte order, which is null and void. By now, it is well known that the President is not gifted in paying attention to both logic and details. Otherwise why would it not occur to him, even if his aides had quoted some mischievous laws, that a tribunal that is not a court of superior record not order the dethronement of a Chief of Justice? Indeed, the sweeping power does not in here in any court in Nigeria, not even the Supreme Court.

Under section 231 (1) of 1999 constitution affirmed the appointment of a person to the office of Chief Justice of Nigeria, which shall be made by the President on the recommendation of the National Judiciary Council (NJC), subject to confirmation of such appointment by the Senate. Subsection (2)(3) further that the appointment of a person to the office of a Justice of the Supreme Court shall be made by the President on the recommendation of the National Judiciary Council subject to confirmation of such appointment by the Senate. A person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been to qualified for a period of not less that fifteen years.

But subsection (4)(5) added that if the office of Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office his resumed those functions, the President shall appoint the most senior Justice of the Supreme court to person those functions. It is further excepted on the recommendation of the National Judiciary Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment, and President shall not re-appoint person whose appointment has lapsed.

Where in the constitution that stated that the President has the power to remove or suspend the CJN without the recommendation of the National Judiciary Council (NJC) after being tried such CJN for the allegation leveled against him, the President have no prerequisite power to remove CJN against the consent of NJC and the clarification from the National Assembly. But for the fact that our constitution was full of faulty and anomalies, that is why the well meaning Nigerians are calling for the overhauling of our constitution which was drifted to us by the military and swallowed it hook and sinker by the democratic government of the day.

Even there is no part of the constitution that empowers the CCT to assume the jurisdiction it claimed in the CJN case. Absolutely none, not even the section 158 or 292, and Tribunal Act which in section Three enables a public officer to admit in writing errors in assets declaration and make amends without being dragged before the CCT. It is unfortunate that the President has tried to conflate the CJN’s assets declaration problems with the government’s anti-corruption war, to the extent of seeing everyone who defends due process as being tolerant of corruption. It is a disingenuous attempt to weaken the hands of those who have long seen the Buhari presidency as either surreptitiously or openly dictatorial. The National instinct of the Buhari presidency is clearly totalitarian. It has no scintilla of democracy in its veins, and cannot have, despite its patently false claims to the contrary in his moralizing address on Friday. Indeed, this illiberal approach to national challenges, such as hiding under the facade of anti-corruption war to bludgeon opponents and execute illicit maneuvers, can only get worse.

Nobody of course is signifying that the CJN has no case to answer, despite the President’s malicious inferences. However, the constitution is abundantly clear how to deal with the situation, if it arises, who has the power to suspend him-in this case not the President-and by what due process he could be removed-in this case too-and the constitution, particularly the role of the National Judiciary Council (NJC), is to the intent that the CJN could not be tried while still a Judiciary officer. It would be anomalous. The President’s peremptory actions are probably anchored on his fear that he could not have his way in both the NJC and the Senate. Notwithstanding, he should have anticipated this a long time ago and sponsored the appropriate judicial process and even constitutional reforms. After all, he had almost two years to nurse to maturity his grudge, which he tries to paint in altruistic colours, and find constitutional ways of tackling whatever bothers him about the judiciary with which he appears eternally and inscrutably at odds.

Even though the constitutional is clear on what should be done if and when a CJN is accused of misconduct, politicians and lawyers may, however, refuse to agree on how to proceed. What undermines the fight against corruption and other ills in Nigeria, as the Justice Ayo Salami case proved in 2011, is not so much the provisions of the law as the inability of those in high offices to summon the character, principles and intellect needed to fight these evils in lawful, sophisticated ways that do not damage the fabric or reputation of the country. After all, the Buhari government has many lawyers in its fold, and the vice president is also a professor of law.